Mr Nasiopoulos was a Greek national who had obtained a qualification in Germany entitling him to exercise the profession of medical masseur-hydrotherapist. His training had lasted 2,5 years. That profession is not regulated in Greece. The nearest profession was that of physiotherapist, for which the minimum training was three years. On that ground, the Greek Ministry of Health rejected the application made by Mr Nasiopoulos for access in that State to the profession of physiotherapist.The Simvoulio tis Epikratias (Council of State, Greece) asked the Court of Justice whether Article 49 TFEU must be interpreted as precluding national legislation which precludes partial access to the profession of physiotherapist, which is regulated in the host Member State, being granted to a national of that State who has obtained, in another Member State, a qualification, such as that of medical masseur-hydrotherapist, which authorises him to carry out, in that second Member State, some of the activities coming under the profession of physiotherapist.In its judgment delivered today, the Court recalled that freedom of establishment was to be exercised on the conditions defined by the host country for its own nationals. Since the conditions for access to the profession of physiotherapist had not, to date, been harmonised at EU level, the Member States remained competent to define the conditions for access, while respecting the basic freedoms guaranteed by the Treaty.
The Court first of all recalled that, under the second paragraph of Article 49 EC, freedom of establishment was to be exercised under the conditions which the legislation of the country of establishment laid down for its own nationals. It followed that, where the taking up or pursuit of a specific activity wasis regulated in the host Member State, a national of another Member State intending to pursue that activity must in principle comply with the conditions of that regulation. (Case C‑330/03 Colegio de Ingenieros de Caminos, Canales y Puertos [2006], Case C‑55/94 Gebhard [1995]).
The Court also reiterated that, since the conditions for access to the profession of physiotherapist had not, to date, been harmonised at European Union level, the Member States remained competent to define such conditions since Directive 2005/36 did not restrict their powers on that point. They must, however, exercise their powers in this area in a manner which respected the basic freedoms guaranteed by the Treaty ( Case C‑108/96 Mac Quen and Others (200)]; and Case C‑330/03 Colegio de Ingenieros de Caminos, Canales y Puertos (2000)
The Court held that legislation of a host Member State which excluded all partial access to a regulated profession and, accordingly, was liable to hinder or make less attractive the exercise of freedom of establishment might be justified, inter alia, by overriding reasons relating to the public interest, provided that it did not go beyond what is necessary in order to attain the objective which it pursues.
With regard to the objective of legislation such as that at issue in the main proceedings, the overriding reasons relating to the public interest relied upon by the Governments which submitted observations were, firstly, consumer protection and, secondly, health protection.
The Court held, as as regards consumer protection, it must be noted that partial recognition of professional qualifications could, theoretically, have the effect of fragmenting the professions regulated in a Member State into various activities. That would lead essentially to a risk of confusion in the minds of the recipients of services provided by professionals established in that Member State, which recipients might well be misled as to the scope of the qualifications associated with the profession of physiotherapist.
The Court however found that exclusion from even partial access to the profession of physiotherapist went beyond what is necessary to achieve the objective of consumer protection.
The Court furthermore held that a particular vigilance was required when examining national measures for the protection of public health. The mere fact that a Member State had chosen a system of protection different from that adopted by another Member State could not affect the appraisal as to the need for and proportionality of the provisions adopted (see, Case C‑294/00 Gräbner [2002; and Case C‑141/07 Commission v Germany [2008]).
The Court held that although it followed that exclusion from even partial access to the profession of physiotherapist went beyond not only what was necessary to achieve the objective of consumer protection but also what is required as regards protection of health, the two following scenarios had to nevertheless be distinguished.
The first scenario concerned cases where, in the Member State of origin and the host Member State, the degree of similarity between the two professions was such that they may be regarded as ‘comparable’ and, accordingly, ‘the same profession’ within the meaning of Article 4(2) of Directive 2005/36. In such a case, any shortcomings in the applicant’s education or training in relation to that required in the host Member State might be effectively made up for through the application of the compensation measures provided for in Article 14(1) of Directive 2005/36, thereby ensuring full integration of the party concerned into the professional system in the host Member State. Consequently, in such circumstances, there was no infringement of Article 49 TFEU where the host Member State did not grant partial access to a profession.
The second scenario, by contrast, concerned cases which were not covered by Directive 2005/36 because the differences between the fields of activity were so great that in reality the applicant should follow a full programme of education and training in order to pursue, in another Member State, the activities for which he was qualified. Viewed objectively, this is a factor which is liable to discourage the party concerned from pursuing those activities in the host Member State. In such circumstances, there was likely to be an infringement of Article 49 TFEU.
The Court concluded that Article 49 TFEU must be interpreted as precluding national legislation which excluded partial access to the profession of physiotherapist, regulated in the host Member State, by a national of that State who obtained, in another Member State, a qualification such as that of medical masseur-hydrotherapist, authorising him to carry out, in that second Member State, part of the activities coming under the profession of physiotherapist, when the differences between the fields of activity are so great that in reality the applicant should follow a full programme of education and training in order to pursue the profession of physiotherapist. It was for the national court to determine whether that was the case.